Indiana, B.&W. Ry. Co. v. Eberle

• Decision Date: 19 April 1887
• Citation: 110 Ind. 542,11 N.E. 467
• Parties: Indiana, B. & W. Ry. Co. v. Eberle.
• Court: Indiana Supreme Court

110 Ind. 542

11 N.E. 467

Indiana, B. & W. Ry. Co.

v.Eberle.^a1

Supreme Court of Indiana.

April 19, 1887.

Appeal from superior court, Marion county.

Harrison, Miller & Elam and C. N. Fairbanks, for appellant. Hill & Lamb, for appellee.

MITCHELL, J.

Eberle sued the railway company for an alleged injury suffered by him, as the owner of a lot, upon which he had his homestead, in one of the additions to the city of Indianapolis. He complains that the company has erected an embankment in front of his lot, and that it occupies a part of the highway with its track, over which its engines and cars are operated, and that such occupation renders access to his property difficult and inconvenient, and otherwise damages and depreciates its value. He prayed for damages, and for an injunction. The special findings of the court present a case like this: The plaintiff was the owner of a lot 46 feet in width, fronting on a highway 40 feet wide. This highway had been, by due authority, converted into a gravel road, and was known as the “Pendleton Pike.” The plaintiff's lot abutted upon the south-east side of the highway, and was occupied by him as a residence prior to the grievances complained of. Before the occupation of the highway by the railroad, the surface water falling and running thereon was conducted along the north-east side thereof, by means suitable for that purpose, so that it was prevented from flowing upon the plaintiff's lot. In the spring of 1882 the railway company, without making or tendering any compensation to the plaintiff, entered upon the north-east side of the highway, opposite the plaintiff's lot, and erected an embankment of earth eleven feet wide and five and one-half feet in height, along the entire front of the lot. The embankment so erected was a continuation or widening of an existing embankment theretofore made by the Cleveland, Columbus, Cincinnati & Indianapolis Railroad Company, whose track runs parallel with that of the Indiana, Bloomington & Western Railroad for the distance of half a mile or more. Upon the embankment so widened and constructed the defendant has laid its track, over which it has ever since operated its engines and cars. By means of the defendant's roadway so constructed, the highway is permanently obstructed to the extent of 11 feet in width, along the north-east side thereof, thereby reducing it to the width of 29 feet along the front of plaintiff's lot, thus forcing the travel over the highway toward the plaintiff's premises, and rendering ingress and egress to and from the same more difficult and inconvenient. The construction of the embankment has also destroyed the means theretofore provided for carrying off the water along the north-east side of the highway, thereby causing the surface water to be thrown upon the plaintiff's lot, and into his cellar. The occupation of the highway in the manner described, and the reduction of its width from 40 to 29 feet, has, as the court finds, damaged and depreciated the value of the plaintiff's property to the amount of $500. He has sustained additional damages, amounting to $10, on account of the flooding of his cellar and premises.

Upon the foregoing facts the court's conclusions of law were that the occupation of the street by the railroad was wrongful and unlawful, and that the plaintiff was entitled to recover “five hundred dollars in damages for the permanent injury to the real estate, by reason of the defendant's entering upon and appropriating eleven feet off the north-east side of the highway,” and by reason of the construction of the embankment and railroad track, and running engines and cars thereon, and the consequent narrowing of the street to 29 feet. As a further conclusion, the court stated that the plaintiff was entitled to recover the additional sum of $10 for damages sustained up to the commencement of the suit, on account of the flooding his premises with surface water.

The questions for decision, although presented by intermediate rulings, may be conveniently considered and disposed of upon the exceptions taken to the conclusions of law. Having found that the plaintiff's lot abuts upon the south-east, and that the unlawful obstruction complained of is the occupation of 11 feet in width, along the north-east side of the highway,-since the line of the plaintiff's lot did not in any event presumably extend beyond the center of the highway,-it necessarily follows that the amount allowed by the court, for damages sustained, on account of the permanent injury to the plaintiff's real estate, must have been for some other injury than the taking and appropriating, or imposing any additional burden upon, the plaintiff's land.

The damages accorded must have been predicated upon the special injury resulting from the fact that ingress and egress to and from his premises were rendered more difficult and inconvenient, and that travel was diverted along that side of the highway adjacent to plaintiff's lot. Two questions are thus presented for consideration: (1) Can the abutting lot-owner, whose title extends at most to the middle of the highway 40 feet in width, maintain an action for damages for an unlawful obstruction 11 feet in width, on the opposite side, the only effect of which is to render access to his property more difficult and inconvenient, and to force the travel nearer to his lot? (2) If the action may be maintained, is the measure of damages the injury sustained up to the commencement of the suit, or may it include the permanent depreciation in the value of the property?

Whatever may be the rule of decision elsewhere, nothing is better settled in this state than that the owners of lots abutting on a street may have a peculiar and distinct interest in the easement in the street in front of their lots. This interest includes the right to have the street kept open and free from any obstruction which prevents or materially interferes with the ordinary means of ingress to, and egress from, the lots. It is distinguished from the interest of the general public, in that it becomes a right appurtenant and legally adhering to the contiguous grounds, and the improvements thereon, as the owner may have adapted them to the street. To the extent that the street is a necessary and convenient means of access to the lot, it is as much a valuable property right as the lot itself. It cannot, therefore, be perverted from the uses to which it was originally dedicated, nor devoted to uses inconsistent with street purposes, without the abutting lot-owner's consent, until due compensation be first made according to law for any injury and damage which may directly result from such interference; nor can the street be invaded, so as to inflict special and peculiar damages or injury upon the adjacent lot-owner's property, without rendering the wrong-doer liable for such damage. Town of Rensselaer v. Leopold, 106 Ind. 29-31, 5 N. E. Rep. 761, and cases cited; Story v. Elevated R. R., 90 N. Y. 122;Mahady v. Railroad Co., 91 N. Y. 148;Uline v. New York Cent., etc., Ry. Co., 101 N. Y. 98, 4 N. E. Rep. 536; Lohr v. Metropolitan E. R. Co., 10 N. E. Rep. 528; State v. Laverack, 34 N. J. Law, 201; Pittsburg Ry. Co. v. Reich, 101 Ill. 157;Brainard v. Missisquoi R. Co., 48 Vt. 107.

Those having the control of streets and highways may authorize the laying thereon of railroad tracks. In this manner the public servitude may be abridged or measurably discharged. But the private rights of those who have adapted their buildings and improvements to an existing highway, and who are deprived of access to or are injuriously inconvenienced in a substantial degree in their means of egress from their lots, by the construction of a railroad, are in no wise affected by the permission obtained from the public authorities. As to such persons, so long as their private and individual interest in the street had not been lawfully acquired, the railroad company remains liable for all special and particular damages resulting directly to their property from the obstruction of any part of the street. In so far as the railroad obstructs or presents a substantial and injurious interference with the ordinary means of access to the lot, it is, as to the owner, an unlawful obstruction. It is a nuisance in the street, and the railroad company becomes a trespasser on the lot-owner's property, whether its structure be laid upon his soil or not. In the absence of an actual taking of property, or that which is regarded as property, such consequential or incidental damages, as result to the abutting lot-owner from the construction and operation of a railroad upon the land of another, afford no right of recovery. Transportation Co. v. Chicago, 99 U. S. 635;Hatch v. Vermont Cent. Ry. Co., 25 Vt. 49.

In case the structure imposes no additional burden upon his soil, the right of the lot-owner to maintain a common-law action for an injury depends upon whether or not the occupation of the street results in damage peculiar to his property, and different in kind from that which is suffered by the community in general. Terre Haute, etc., R. Co. v. Bissell, 108 Ind. 113, 9 N. E. Rep. 144; Dwenger v. Chicago, etc., Ry. Co., 98 Ind. 153;Sohn v. Cambern, 106 Ind. 302, 6 N. E. Rep. 813; Cummins v. City of Seymour, 79 Ind. 491;Ross v. Thompson, 78 Ind. 90;Hanlin v. Chicago, etc., Ry. Co., 61 Wis. 515, 21 N. W. Rep. 623;Hobart v. Milwaukee, etc., Co., 27 Wis. 194.

The community in general does not, of course, mean those persons who use the street or highway, and yet reside at such a distance from the railroad as to suffer none of the annoyances or inconveniences incident to its construction and operation. The interest in the street which is peculiar and personal to the abutting lot-owner, and which is distinct and different from that of the general public, is the right to have free access over it to his lot and buildings, substantially in the manner he would have enjoyed the...